Custody of a Grandchild After a Parent Dies in Pennsylvania

When a parent dies and their child has been living with you — or needs to — the legal path forward depends almost entirely on what is happening with the surviving parent. Pennsylvania gives grandparents clear standing in this situation, but the right court and the right type of petition change based on the facts.

When the Surviving Parent Is Involved

If your son or daughter has died and the other parent is alive and willing to care for the child, Pennsylvania law generally gives that surviving parent full parental authority. You cannot override a fit surviving parent's rights simply because you have been providing care.

However, you do have options for maintaining a relationship with your grandchild. Under 23 Pa.C.S. § 5325(1), grandparents and great-grandparents on the deceased parent's side have standing to petition for partial physical custody or supervised physical custody. This is the visitation pathway — it does not give you primary custody, but it does give you enforceable court-ordered time with the child.

To succeed under § 5325(1), you need to show that spending time with you serves the child's best interest. The court weighs the 14 statutory factors under § 5328, including the child's existing relationship with you, the child's need for stability, and the impact of the arrangement on the child's emotional development.

When the Surviving Parent Cannot or Will Not Care for the Child

If the surviving parent is also deceased, incapacitated, incarcerated, or has abandoned the child, you have two main paths:

Family Court custody under Title 23, Chapter 53 is the standard route if you are seeking physical and legal custody of the child. You file a Custody Complaint (Form 2 for grandparents/third parties) in the Family Division of the Court of Common Pleas. A § 5324(3) claim requires that the relationship began with parental consent or court order and that the child is dependent, at risk, or has lived with you for at least 12 months; § 5324(2) may apply if you assumed an in loco parentis role with the parent's consent.

Orphans' Court guardianship under Title 20, Chapter 51 may apply when the parents are deceased or incapacitated, or their parental rights have been suspended or terminated. This gives you guardianship of the child's person (care and decision-making authority) and, if the child has inherited assets or insurance proceeds, potentially guardianship of the estate as well.

The practical difference: Family Court custody is more commonly recognized by schools, doctors, and benefits agencies. Orphans' Court guardianship may be more appropriate when no parent exists to contest the arrangement and the child has financial assets that need managed.

Steps to Take Immediately

If the death has just occurred and the child is already in your care:

1. Obtain certified copies of the death certificate — you will need these for court filings, school enrollment, and benefits applications
2. Contact PA KinConnector at 866-546-2111 — the state's kinship navigation program can connect you with local resources and support groups, though they cannot help with legal filings
3. Ask the Social Security Administration whether the child may qualify for survivor benefits based on the deceased parent's work record; benefit eligibility and who manages payments are separate questions
4. File for custody or guardianship as soon as you have gathered the necessary paperwork. The longer you wait, the more complicated standing arguments become if another party steps forward

If the child is currently with the surviving parent and you are concerned about their safety or welfare, document your concerns carefully. Filing for partial custody under § 5325(1) gives you a legal mechanism to stay involved without trying to remove the child from a living parent.

Benefits and School Enrollment

A certified court order documents the authority it grants. Check its terms before making decisions for the child or applying for benefits. If the order grants the relevant authority, you may be able to:

• Enroll the child in your school district under 24 P.S. § 13-1302
• Consent to medical treatment within the order's grant of legal custody authority
• Apply for Child-Only TANF, SNAP, Medical Assistance, and CHIP through your County Assistance Office
• Check tax guidance to determine whether you may claim the child as a dependent; custody and tax dependency rules are separate

While you are waiting for the court order, Pennsylvania's sworn statement process under 24 P.S. § 13-1302 may let you enroll the child in school temporarily. A caregiver authorization affidavit can also provide limited medical consent authority in the interim.

Our Pennsylvania Guardianship and Custody Court Process Guide covers both the Family Court and Orphans' Court paths, with specific guidance on the documentation you need when a parent has died.

Frequently Asked Questions

Can the surviving parent block me from seeing my grandchild after my child dies?

A surviving parent can limit contact, but they cannot completely override your statutory right to petition. Under § 5325(1), grandparents on the deceased parent's side have standing to request partial physical custody. The court will evaluate whether access serves the child's best interest — a long, close relationship with the grandchild weighs heavily in these decisions.

Do I file in Orphans' Court or Family Court?

If the surviving parent is alive and you are seeking primary custody because they are unable or unwilling to care for the child, file in Family Court. If the parents are deceased or incapacitated, or their rights are suspended or terminated, and you need to be appointed as the child's legal guardian, Orphans' Court may be appropriate. When in doubt, ask the Clerk of the Orphans' Court or a legal aid attorney which division applies.

How long does the process take?

Timing depends on service, county scheduling, and whether the case is contested. If a judge enters an ex parte emergency order, the full hearing is typically scheduled within 5 to 10 days. Ask your county court about current conference and trial dates.

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